Weekly Notes: legal news from ICLR – 27 November 2015

This week’s autumn review includes a spending spree on the courts, a change of forum shopping habits, a speaker denied a hearing, a monkey pressing his suit, an exemption withdrawn and a gateway moved. Plus the various horrors of injustice in foreign parts.

Autumn statement

Chancellor spins on a sixpence

Acting on better than expected forecasts, the Chancellor of the Exchequer in his Autumn Statement and spending review pulled a golden rabbit out of his battered old austerity top hat (or perhaps it’s a Northern Powerhouse stove-pipe hat). At any rate, among other widely publicised dole-outs (and at least one smart u-turn, if not spin-round), Osborne has promised £700m for court modernisation and technology upgrades. This will be music to the Lord Chief Justice’s ears (see last week’s Weekly Notes) and was well received by Natalie Ceeney, CEO of HM Courts and Tribunals service, who tweeted gratefully

Over £700m to modernise the courts and tribunals service. Brilliant news. The hard work starts now!

However, the funding is not actually pulled from a hat, but rather from closing and selling off old courts. What this means in terms of open justice and transparency is a good question. If the modernised justice system is going to conduct hearings online in a virtual courtroom, where will the public gallery be? Where will the press bench be? Where will the law reporter sit? Saving money and modernising process are worthy aims. But as we mark the 150th anniversary of Alice’s Adventures in Wonderland (see image), let’s hope the principle of open justice doesn’t get lost down a digital rabbit hole!

Defamation

Is England’s loss Ireland’s gain?

According to a recent press release from Thomson Reuters, the number of reported defamation cases in the UK has fallen by almost a third (27%) over the last year, from 86 to 63, representing the lowest number recorded since 2008/9. Thomson Reuters say that the number of defamation cases which were linked to social media was one of the only types of case in which an increase was recorded – up 38% from 8 in 2013/14 to 11 in 2014/15. (These are not large numbers in any case.) The coming into force in 2014 of the Defamation Act 2013, which introduced requirements for claimants to show actual or probable “serious harm” as a result of alleged defamation, is likely to be driving the overall decline.

Inforrm’s blog cast doubt on the accuracy of the figures, but elsewhere on the blog Eoin O’Dell, reposting from theCearta.ie blog, suggested that England’s loss was Ireland’s gain as

Dublin seems to be taking London’s mantle as Capital of Defamation, as the destination of choice for libel tourists seeking a congenial jurisdiction in which to bring a defamation action.

He explains how conditions on litigants imposed in the 2013 Act in England may not be replicated in the equivalent Irish statute of 2009, but suggests this is only half the story and there may well be common law principles applicable in the Irish courts to similar effect as those in England, just not tested yet in case law. So the picture is a lot less clear cut than it might appear from the TR release.

Copyright (1)

Monkey suit – will it be barred?

The English common law having rejected the idea of a dog having a cause of action (see Every dog shall have its day – in court? in last week’s Weekly Notes) it is unlikely that Naruto, the crested macaque in the case of Naruto v Slater, currently pending before U.S. District Judge William Orrick III of the Northern District of California, would make much headway in our own jurisdiction either.

The claim is being brought on Naruto’s behalf by People for the Ethical Treatment of Animals (PETA), on the grounds that a photograph (the now famous “Monkey Selfie” on which we reported last year (see “Snap judgment on simian selfie”, Weekly Notes – 8 August 2014), attracted rights under copyright law which the nonhuman plaintiff was entitled to exploit. Unsurprisingly, the claim is being vigorously opposed on behalf of photographer David John Slater, on whose camera the macaque’s image was captured and a motion to dismiss was filed on 6 November, as reported in The Recorder.

Should the action be allowed to proceed, the plaintiffs assert that the money claimed would be used to help preserve Naruto’s habitat on an Indonesian island.

But maybe Naruto has other ideas? What if success should go to his head? What if he should decide to abandon his native habitat and take off for the big city, get a job, wear a suit and hang out in bars like Exeter’s “The Monkey Suit”, from whose site this rather splendid image was taken. According to their website:

“A ‘Monkey Suit’ is a uniform that one wears to work with the purpose of creating an atmosphere of uniformity or compliance” WE SAY: leave your ‘suit’ at the door, join us, loosen up and be yourself…

Freedom of speech

Pros and cons of prejudice: or Don’t get mad, get out

Hurrah hurrah went the general reaction on Twitter but anyone who stops to think about free speech ought to give a pause before joining in. Whatever Katie Hopkins was going to say (and some of her columns in tabloid newspapers have been pretty offensive – such as comparing swarming migrants to cockroaches infesting European shores), turning up to a talk and then walking out as soon as she began to speak, without listening to her argument or point of view, is not really any different to banning her from coming to talk in the first place, according to the “no platforming” doctrine whereby you refuse to listen to anyone you don’t already agree with.

It is important to note that the conversation at no point has been about banning Ms Hopkins from speaking on campus, or denying her right to speak. It is instead about saying it is distasteful and incongruous for our University, as part of a 50th celebration event, to provide a platform to someone who adds nothing to the intellectual or academic discourse; and an individual who publicly utters such overtly bigoted views.”

Katie prepares to meet her critics

Compare and contrast with the case of French comedian, Dieudonné M’bala M’bala, who was recently sentenced to two months in jail by a Belgian court for incitement to hatred over racist and antisemitic comments he made during a show. I don’t think anyone was suggesting that Katie Hopkins was going to express unlawfully racist sentiments. The event was a discussion about the future of the welfare state.

There’s a good word for making your mind up before you’ve heard the evidence. It’s called prejudice. Free speech does not of course require the listener to listen. But it does I think expect the listener to listen to an argument before rejecting it. Audi altaram partem, to put it in a nutshell.

Needless to say, Ms Hopkins was upbeat about the whole fiasco, later writing what she probably thought was a withering put-down column in the Daily Mail: “We used to send young people to university to expand their horizons – now the main objective seems to be to close their minds” went the title, and the rest is worth reading too – if you’re not too prejudiced to read it. However, it seems that prior to the event she had already provoked her critics by tweeting a hilariously ( she says deliberately) mis-spelled list of tension points. Or perhaps it was her synopsis?

Copyright (2)

Home taping is killing music (again)

For a while there was something called the private copying exception, which allowed you to make personal copies of your own music (or other copyright material, purchased legally but not necessarily playable conveniently), including format-shifted versions. So you could tape your old vinyl and copy CDs into your computer. But now it seems you can’t, not legally anyway.

The exception had been provided under section 28B into the Copyright, Designs and Patents Act 1988 (as inserted by reg 3(1) of the Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 (SI 2014/2361)). But the *Music Biz*, in the guise of British Academy of Songwriters, Composers and Authors, the Musicians’ Union, and UK Music, objected. On their claim for judicial review against the government, the High Court (Green J) ruled that the decision to introduce the exception in section 28B of the 1988 Act was unlawful because the UK government, in enacting the amendment, pursuant to EU Parliament and Council Directive 2001/29/EC, failed to provide adequate evidence to justify its conclusion that the likely harm from such copying would be so negligible as not to require funding of compensation via levies on the sale of hardware and blank media, such as had been implemented in some other EU countries. See R (British Academy of Songwriters, Composers and Authors) v Secretary of State for Business, Innovation and Skills (The Incorporated Society of Musicians intervening)[2015] EWHC 1723 (Admin); [2015] WLR(D) 268.

Now the government, rather than try implementing some complicated levy system, has simply thrown in the towel and withdrawn the amendment. So bully for the Music Biz, eh? A futile victory in a battle (remember “home taping is killing music”?) that in an age of virtually free music streaming is patently no longer relevant.

Ars Technica, commenting on the decision, said

By insisting on a judicial review of this long-overdue and extremely limited copyright exception, which in any case only legalised what everyone was already doing, the music industry has certainly shown itself to be quite indifferent to what its customers want. But more importantly, it has confirmed that copyright itself is no longer fit for the digital age.

Parish news

Pupillage gateway recruitment window

The Pupillage Gateway recruitment window may be brought forward from April to January, following proposals issued for consultation by the Bar Council. The recruitment window is the method through which chambers are able to advertise and recruit pupils. The reason for bringing it forward would be to enable potential pupils to know whether or not they have been successful in advance of the date by which they need to have signed up for their Bar Professional Training Course (BPTC). It would avoid clashes between academic exams and pupillage interviews.

This would avoid the situation where a candidate who was not successful was not then stuck with an expensive course for which, on reflection, they might decide they had no further use. Of course, they would still need to have passed that exam to do some of the other jobs open to those of a barristerial mind, such as law reporting. (The application window for applications for full time law reporting jobs at The ICLR has now closed, but there may still be openings for freelance contributors.)

Solicitors’ regulation: back to first principles

The Gazette reports that the Solicitors Regulation Authority is to make a ‘fundamental shift’ from issuing prescriptive rules in favour of setting principles for solicitors to follow. The regulator has begun an 18-month process aimed at simplifying its approach and reducing the 600-page SRA handbook.

The idea that a profession should be regulated by making sure its members behave according to a set of generally agreed principles seems oddly old-fashioned. Could it be that the great regulatory make-work programme, after years of accreting layers and layers of codified rules, has simply ground its gears round to face where it began?

Law (and injustice) from around the world

China

Journalist’s jail term reduced

A Chinese court reduced by two years the seven-year jail sentence given to Gao Yu, a 71-year-old Chinese journalist convicted of “leaking state secrets”, her lawyer said after an appeal in a case condemned by free speech advocates, reports AFP. A former winner of UNESCO’s World Press Freedom Prize, Gao has been a consistent critic of the ruling Communist party’s authoritarian policies.

The hearing comes as China‘s president, Xi Jinping, oversees a crackdown on dissent that has seen hundreds of lawyers, activists and academics detained in recent years, with dozens jailed.

France-based Reporters Without Borders ranked China 176th out of 180 countries in its 2015 Press Freedom Index, said AFP.

Saudi Arabia

Threat to execute poet condemned

Following Saudi Arabia’s promotion to head of the UN Human Rights Council, and its ambassador’s querulant letter to the Daily Telegraph warning against criticising his nation’s record on human rights, news that Saudi courts have sentenced a woman to be stoned to death for fornication (the man involved being sentenced to be whipped) and that a poet is to be executed for apostacy has prompted some commentators to wonder whether, in fact, there is very much difference between the Kingdom’s strict enforcement of Sharia law and the punishments, generally described as “barbaric” of the self-styled Islamic State, or ISIS or ISIL or Daesh or whatever you call it.

The New York Times does not seem to think so: in an article entitled Saudi Arabia, an ISIS That Has Made It (translated from the original French), its correspondent Kamel Daoud argues, essentially, that the willingness of western nations to do (very good) business with Saudi Arabia while declaring war on Daesh, and of Saudi Arabia to send condolence for acts of terror inspired by the same extreme Wahhabism that informs its own legal system, involves not just a contradiction but even a kind of schizophrenia, in which both sides are basically in denial of the reality.

The sentencing of Palestinian poet Ashraf Fayadh to death for apostasy is just the latest in a string of what seem, from a nation that even belongs to the UN Human Rights Council, let alone heads it, excessive, unnecessary and wildly disproportionate penalties. Other reported examples, such as beheading and crucifying a teenage protester, stoning to death a woman for having consensual sex with a man, or imprisoning and imposing 1000 lashes on a blogger for criticising the government may be only the tip of an iceberg of cases.
In response to criticism, Saudi Arabia has now threatened to sue any Twitter-user who dares to suggest the poet’s death sentence is “ISIS-like”, reports Newsweek.

It is not clear what the cause of action would be. But if proceedings are launched within the Kingdom itself it may be for something akin to contempt of court, for questioning the fairness of the judicial system in meting out the punishments in question. This has previously been used against lawyers who criticised the justice system within the Kingdom. Of course, if that is the law of the land, the courts and the judges may be stuck with it. Change needs to come from the top – or indeed from the international community, such as the UN Council on Human Rights on which … er, oh, I see. Right then. That’s that.

Tanzania

Training for court journalists

In a welcome bit of transparency news from abroad, the High Court of Tanzania in collaboration with the Media Council of Tanzania (MCT) has organised a two-day training for journalists who cover court cases, according to IPP Media. The report notes that:

The training is part of ongoing collaboration works between the High Court and MCT aimed at improving professionalism in the coverage of court cases but also to allow judicial workers including judges and magistrates to understand the role of journalists.

The report cites a media statement from the MCT recording that:

The training will also enable justice officials and journalists to better decimate information to the public regaining their confidence in the judiciary.

I suspect they mean “disseminate”.

Turkey

Lawyer shot dead

Tahir Elci, who was head of the Diyarbakir Bar Association, has been shot dead in Turkey’s south-eastern city of Diyarbakir. He was a prominent pro-Kurdish lawyer and human rights activist and had been making a statement calling for an end to violence between the Turkish state and the Kurdish rebel group the PKK when he was shot in a gun battle between police and unidentified gunmen. Riots followed the shooting, in which a policeman also died.
Full report: BBC

USA

California Bar exam pass rate slumps…

Aspiring advocates put on their worst showing for 30 years as the pass rate for the July sitting of the California Bar exams fell to 46.6 percent, reports The Recorder.

The report cites official figures released by the State Bar of California, which in turn reveal a slightly more nuanced picture.

Preliminary statistical analyses show that of the 8,323 applicants who took the GBX [General Bar Exam], 70.1 percent were first-time takers. The passing rate for the 5,838 first-time applicants was 60.0 percent overall. The passing rate for the 2,485 applicants repeating the examination was 16.0 percent overall.

Those retakers sound like a bunch of bozos. You do wonder, when you read Gary Slapper’s column in The Times law pages, Weird Cases, where some of the adversarially challenged advocates come from. Clearly they are among those who when it comes to bar exams are not just sad losers but repeat failures.

The Recorder report cited Kyle McEntee, executive director of the nonprofit Law School Transparency, as blaming the slumping pass rates on law schools that have lowered their admission standards, and the ABA [American Bar Association] for accrediting them. One explanation for a slump that has been getting worse for some years might be that brighter students, after the financial crash, have been drawn into tech and other industries, leaving the law to less talented aspirants. Some shakeout can be expected, but not before a few of those losers have also lost some other losers’ cases for them, and probably some winners too.

The idea that law schools would lure too many into a profession which has no room for them seems curiously alien to these shores – or not, you may think, members of the jury.

That’s it for now. My thanks to all who led me to stories, mostly my followees on Twitter.

This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR, who also tweets as @maggotlaw. It does not necessarily represent the opinions of ICLR as an organisation. Comments welcome on Twitter @TheICLR.